Florida court defends 'rocket docket' foreclosures in its final month
Florida's 20th Judicial Circuit pushed back against claims from the American Civil Liberties Union and defended the need for accelerating foreclosure cases through its courts. In June 2010, the Florida Supreme Court ordered the lower court to establish a system to work through the growing backlog of foreclosure cases. According to the order, foreclosures could only spend 12 months in the system from "filing to final disposition." The goal was to reduce the 40,000-case backlog by 62% in one year. The program is scheduled to close at the end of June as funding runs out. But in April, the ACLU filed a petition with a Florida appellate court attempting to block the 20th Judicial Court from using the expedited process. The petition stemmed from a foreclosure case from the Bank of New York Mellon (BK) against Florida homeowner Georgi Merrigan. The petition included a slew of affidavits and appendices from other foreclosure defense attorneys alleging the "rocket docket" judges of ignoring requirements for properly attached paperwork from the banks and denying delinquent borrowers a say in court. The 20th Judicial Circuit in its response, filed with the appellate court in May, argued the affidavits were not recorded before the trial court and did not pertain to the Merrigan case, which is a requirement for any action seeking to prohibit the "rocket docket" from operating. "In summation, the appendices submitted by the ACLU are irrelevant, improper and inappropriate for consideration by this court," the 20th Judicial Circuit Chief Judge Keith Cary said in the response. Cary said the Merrigan case has spent two years pending in the system, and it has never been set for trial. In defense against allegations of denying delinquent borrowers a say in court, Cary said in default cases, when the defendant admits they have failed to pay on the loan, the only remaining issue is the amount of the judgment. The amount, Cary said, in a foreclosure action is a "liquidated" sum, which makes it appropriate to dispose of the case on a summary judgment without "the absolute necessity of a trial." But because Cary was only required to address specific issues regarding the Merrigan case, he offered only a brief defense of the ACLU allegations of ignoring documentation rules. Cary said before a judgment of foreclosure can be entered, the lender must produce the original note, but in the two years the Merrigan case spent in the system, it never progressed to the point such a judgment could be made. "So requiring production of the note is not yet on the agenda," Cary said without addressing the same issue in any other case. Cary went on to defend the need for the "rocket docket" even as the funding runs out. The original funding for the system was provided via federal economic stimulus money, provided to the court in June 2010, but Cary said the funding was never intended to be renewed. Still, the problem lingers. When foreclosure issues surfaced late in 2010, many law firms in Florida representing the banks came under investigation from the Florida attorney general. In the Merrigan case, BNY Mellon was represented by the Law Offices of David J. Stern, which ceased foreclosure work March 31 and had to abandon the Merrigan case. Cary said because the amount of law firms able to effectively represent the banks in these hard-hit areas is dwindling, the system is locking up. He suggested the need for accelerated case management by the courts will continue even if the funding does not. "The foreclosing banks are often represented by out-of-town law firms with large case loads and a correspondingly diminished attention to individual cases," Cary said. "The unexpected volume and unanticipated permutations of the foreclosure crisis have caught the banks unaware, often resulting in litigation paralysis. Case management is a means of bringing some order to this chaotic scenario." The ACLU is expected to release its response Thursday. Write to Jon Prior. Follow him on Twitter @JonAPrior.